County Board may not utilize unidentifiedpaper ballot in voting to appoint CountyHighway Commissioner, but may vote by ayesand nays or show of hands at open session ifsome member does not require vote to be takenin such manner that the vote of each membermay be ascertained and recorded. Section66.77(6), Stats.

Although the term "elect" is used, the CountyBoard is really appointing such officer andexercises its power by voting pursuant toSection 59.02(2), Stats., 61 OAG 116 (1972).

1. In view of the prohibition against the use of secret ballots contained in Section 66.77(6), Stats., can the County Board vote by unidentified paper ballots if submitted in writing and thereafter tallied with the totals for each candidate announced publicly?

In earlier times such method of voting waspermissible at public meetings where neitherstatute nor charter required aye or nay voterecording and no statute prohibited the useof a secret ballot.

State ex rel. Burdick v. Tyrrell (1914),158 Wis. 425,149 N.W. 280.

However, I am of the opinion that such votingprocedure would be in violation of Section66.77(6), Stats., as created by Chapter 297,Laws of 1973, which provides:

66.77(6) Unless otherwise specifically provided
by
statute, no secret ballot
shall be utilized to determine
any election or other decision
of a governmental body at any meeting,
and any member of such body
may require that a vote be taken
in such manner that the vote of each
member may be ascertained and recorded.

In my opinion such ballots would be secretballots within the meaning of that sectionand I am not aware of any specific statutewhich would permit members of theCounty Board to vote by secret ballot.

This section is applicable to bothopen sessions and closed sessionsof governmental bodies.

It is my further opinion that the electionof a County Highway Commissioner could notbe accomplished at a closed session of theCounty Board.

An argument can be made that the Board is"considering employment" and that Section66.77(4)(a), Stats., would be applicable.

However, it is my opinion that, even ifSection 66.77(4)(a), Stats., is applicable toconsideration, the vote of the County Boardis not an integral part of such considerationand would therefore have to be taken at opensession.

In addition to the requirements inSection 66.77, Stats., county boards aresubject to Section 59.04(4), Stats.,which provides in part:

59.04(4) The board shall sit with open doors,
and all persons conducting themselves
in an orderly manner
may attend. . . .

Also see Section 59.17(1), Stats., as to theduty of the county clerk to

. . . record the vote of each supervisor on any question submitted to the board, if required by any member present .
. .

The term "secret ballot" is not defined inSection 66.77, Stats., or Section 990.01,Stats. The general rule of Section 990.01(1),Stats., is applicable and provides:

990.01(1) GENERAL RULE.

All words and phrases shall be construed according to common and approved usage; but technical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning.

I am of the opinion that the term "secretballot" as used in Section 66.77(6), Stats.,has the same peculiar meaning which it hasin the law where elections involvingelectors are concerned.

. . . The absolute secrecy of the vote is required, and to secure that it
must be by ballot. . . . The paper called
a ballot must not disclose for what or
for whom it is voted, except by the name
of the person voted for and the office
on the face thereof.

The court went on to state that certainprinting or writing on the outside of aballot to make the voting of it possibleand practicable and not placed there forthe purpose of making it known for whomthe elector votes would not rendera ballot invalid.

My answer to your first question wouldnot preclude the use of identifiedpaper ballots by a County Board.

I am of the opinion that where a paper ballotis utilized by a County Board to appoint aCounty Highway Commissioner, such ballot mustcontain the name or other identification ofthe member voting, in addition to the name ofthe person voted for, even where no memberhas requested that the vote be taken in suchmanner that the vote of each member may beascertained and recorded.

Use of such ballots would prevent following,[fn1] but would permit other members andmembers of the public to ascertain howindividual members voted.

The ballots themselves would be publicrecords within the meaning of Section19.21(1), Stats., and inspection wouldbe permissible under Sections 19.21(2)and 59.71(1), Stats.

A secret ballot is required under ArticleIII, Section 3, Wisconsin Constitution, andby statute in any election, with exceptions,where electors exercise rights of suffrage.

The Constitution does not require and thelegislature has not deemed it necessary toprovide for the use of a secret ballot inmatters to be determined by County Boardsof Supervisors.

Supervisors do not vote on matters beforethe body as electors, but rather, asrepresentatives of their constituents.

A secret ballot would defeat theaccountability factor of individual membersof the governmental body.

2. May a vote be taken by ayes and nays where some member has not requested
that the vote be taken in such manner that the vote of each member may be ascertained and recorded?

I am of the opinion that ayes and naysor a showing of hands can be used.

Other members and members of the public inattendance would have some chance ofascertaining how individual members voted.

When construed as a whole, Section 66.77(6),Stats., would seem to permit such manner ofvoting where an individual member had notrequired voting in such manner that thevote of each member could beascertained and recorded.